This FOIA response from the FDIC dated June 29, 2017 contains a request to renew CIT Bank, N.A.’s “Limited Power of Attorney” from the FDIC regarding the failed IndyMac Bank, fsb and IndyMac Federal Bank, fsb. The “Justification” for CIT Bank’s request states as follows:

Justification

We have undertaken a thorough review of our books, records, and existing loan files for all Group 2 loans and believe we have completed assignments into the appropriate entity for both portfolios where appropriate, available, and where such a need for an assignment is known. However, in our mortgage servicing activities, we continue to be faced with legal and technical challenges, such as borrower bankruptcies and enjoined proceedings, requiring we recreate a chain of title based on factors that cannot be identified in advance without obtaining an updated title report on every loan serviced. It is cost prohibitive to obtain an updated loan level title report for each loan we are servicing, which, again, would be the only way to ensure a clean chain of title through all prior transfers.

Absent a renewed power of attorney, to avoid the risk of jeopardizing our lien position and to enable the bank to transfer title when regularly permissible we would be obliged to approach the FDIC for each instance requiring a signature on an assignment or other instrument of transfer or conveyance where, despite having exercised considerable efforts, we find at the commencement of collection or bankruptcy activities that we do not have a recorded assignment into the appropriate entity.”

Though this document needs no further explanation, I’ll take the liberty to simplify: The only way this servicer believes it can ensure a “clean chain of title” is to obtain an updated title report for each loan it services. However, that costs too much money. CIT Bank is basically saying, “So with your permission FDIC, and knowing as much as we do, we’re going to recreate the chains of title by executing assignments and endorsing notes for all these loans to which we have no ‘clean’ chain of title as your attorney-in-fact.”

This also begs the question. If you don’t have a clean chain of title in your servicing records, and won’t invest in a title report to determine who owns the loans you service, who are you sending the money to?

State AGs have not forced LPS/Black Knight to comply with the Consent Judgment

Editor’s Note: Eric Mains, a former FDIC Team member who saw the securitization fraud first hand, has been encouraging homeowners who are in foreclosure, or were foreclosed upon, to send FOIA requests to their state Attorney Generals and ask for information about the enforcement of the LPS/Black Knight consent judgment they signed. The LPS consent judgment was agreed to by all 50 state AGs and it appears the states took the funds, but did little else to ensure compliance with the order- including the remediation of fraudulent documents filed in county records. For background on FOIA strategy and Eric Mains, see here and here, and listen here.

File a Complaint with the ACLU if the AG’s office in your State refuses to Comply with a FOIA/Public Records Act Request regarding the LPS Consent Judgment.

by Eric Mains

The ACLU has initiated and assisted with legal actions in numerous instances where FOIA/Public Records Acts Requests have been denied in violation of state laws. The ACLU takes a dim view of government entities trying to deny the public its rights to access such information, and may decide to help in your case. Here’s how to get started.

Step #1. Gather copies of your records request and the response/refusal of the AG’s office to respond to your request.

Step #3. If you have filed a suit to force a release of the denied records, or intend to, there will be a space to fill this out on the ACLU’s intake form. Fill out all required information as requested. Below is an example of a description you can use for your complaint regarding a denial of information as to the 2013 LPS Consent Judgment.

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Example Complaint-ACLU

The complaint regards the refusal of the (XX State here) Attorney General’s office to release basic & non-privileged information covering a 2013 Multi-State Consent Judgment (“CJ”) under (State Code here) (See attached request and response from XXXX AG’s office). The CJ was touted by the various state AG’s offices as being a “Win” for consumers in remediating widespread forgery and robo-signing which affected thousands of homeowners who faced foreclosure, especially in minority and low-income neighborhoods. The CJ covered affected foreclosures from 2008- 2013, as well as through the present (See attached copy and synopsis also available athttp://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-31-lps-settlement.html).

A majority of the 50 State Attorney General’s offices entered into the CJ with Lender Processing Services (“LPS”), an entity which was brought to the nation’s attention largely because of a report done by CBS news in a “60 Minutes” episode from April 2011 (See http://www.cbsnews.com/news/mortgage-paperwork-mess-next-housing-shock/ , where CBS reported on Lynn Syzmoniak’s investigation into “robo-signing” used in the foreclosure of her home.

The (XX State here) AG’s office has refused to release the most basic and important information regarding the CJ– Information as to how compliance by LPS under the CJ was being tracked, the metrics being used to ensure LPS compliance, how many consumers obtained relief under the CJ in (XX State here), and the monetary figures of this relief. Without this basic information, it is impossible for the public to know IF the CJ is being enforced as required. The AG’s office further refused to release the quarterly compliance reports required to be given it by LPS, which would have shown HOW and IF LPS was complying with the CJ.

In short, it appears not only has the AG’s office not lived up to its mandate of protecting the public (as the CJ it touts as a “Win” would require), it has also chosen to stonewall the public’s right to obtain basic information about the CJ in order to protect itself from embarrassment and to shield LPS from being required to live up to the terms of the CJ. The AG’s office accepted over ($ XX- settlement $ accepted from LPS here) million from LPS in 2013 as well, and how this money was spent to protect injured homeowners remains in question.

The ACLU has historically helped to pursue many cases nationally where state government(s) have intentionally violated public records acts, impeding the ability of the public to obtain basic information as to how government is fulfilling its responsibilities. The basic information regarding this CJ is being categorically denied to citizens by the AG’s offices in every state, Indiana being one of them, and it is critical that the ACLU help citizens obtain this information to ensure citizens rights are being protected as the AG’s office(s) would represent.

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Step #4. File the complaint and all requested back-up documents with the ACLU in your state. Turn-around time is usually 6-8 weeks. Complaints can be filed, online, by fax, or by mail or e-mail.

*Important point to remember- Much as was mentioned regarding the FOIA requests to the various AG’s offices, you have 50 bites at the state(s) apple(s) here to get the 50 individual state ACLU offices involved…if only ONE state is forced to release the compliance reports and information regarding the LPS CJ with the ACLU’s help, it’s going to have a huge positive impact for future foreclosure actions.

American jurisprudence is clearly still struggling with the fact that in most cases the forecloser either does not exist or does not have any interest in the loans they seek to enforce. In virtually all instances PennyMac is acting in the role of a sham conduit while allowing its name to be used as the front for a nonexistent lender.

Such foreclosers use semantics and legal procedure to create and cover-up the illusion of “ownership” of the debt (the loan) and the illusion of having the rights to enforce the note bestowed by a true creditor. This case opinion is correct in every respect and it conforms with basic black letter law in all 50 states; yet courts still strive to find ways to allow disinterested parties to foreclose.

The need to understand “chains of title” or “chains of events” and the laws applicable thereto (e.g. judicial notice, legal presumptions etc.)

The need to formulate a presentation to the judge that is very persuasive.

The need to appeal when trial judges don’t apply the law or don’t apply the law correctly.

The following are significant quotes from the case.

Plaintiff, a homeowner and borrower, sued the defendant financial institution for wrongs allegedly committed in connection with a nonjudicial foreclosure sale of his residence. Plaintiff’s main theory was that the financial institution did not own his note and deed of trust and, therefore, lacked the authority to foreclose under the deed of trust. (e.s.)

The financial institution convinced the trial court that (1) it was, in fact, the beneficiary under the deed of trust, (2) a properly appointed substitute trustee conducted the foreclosure proceedings, and (3) the plaintiff lacked standing to claim the foreclosure was wrongful. The financial institution argued its chain of title to the deed of trust was established by facts stated in recorded assignments of deed of trust and a recorded substitution of trustee. The trial court took judicial notice of the recorded documents. Based on these documents, the court sustained a demurrer to some of the causes of action and granted summary judgment as to the remaining causes of action. On appeal, plaintiff contends he has standing to challenge the foreclosure and, furthermore, the judicially noticed documents do not establish the financial institution actually was the beneficiary under the deed of trust. We agree. (e.s.)

As to standing, the holding in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova) clearly establishes plaintiff has standing to challenge the nonjudicial foreclosure on the ground that the foreclosing party lacked the authority to initiate the foreclosure because it held no beneficial interest under the deed of trust. (e.s.)

As to establishing facts by judicial notice, it is well recognized that courts may take notice of the existence and wording of recorded documents, but not the disputed or disputable facts stated therein. (e.s.) (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Under this rule, we conclude the facts stated in the recorded assignments of deed of trust and the substitution of trustee were not subject to judicial notice. (e.s.) Therefore, the financial institution did not present evidence sufficient to establish its purported chain of title to the deed of trust. Consequently, the financial institution failed to show it was the owner of the deed of trust and had the authority to foreclose on plaintiff’s residence.

We therefore reverse the judgment and remand for further proceedings.

….

The Links in PennyMac’s Purported Chain of Title

“Links” in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee’s sale to PennyMac.

Link One-Sale: Clarence and Betty Dake sold the residence to Borrower pursuant to a grant deed dated April 19, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Two-Loan: Borrower granted a beneficial interest in the residence to Long Beach Mortgage Company pursuant to a deed of trust dated June 21, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Three-Purported Transfer: Long Beach Mortgage Company purportedly transferred its rights to Washington Mutual Bank by means of a document or transaction not identified in the appellate record. Also, the appellate record does not identify when the purported transaction occurred. Borrower disputes the existence of this and subsequent transfers of the deed of trust. (e.s.)

Link Five-Assignment: JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, purportedly transferred the note and all beneficial interest under the deed of trust to “JPMorgan Chase Bank, National Association” pursuant to an assignment of deed of trust dated July 25, 2011, and recorded on July 26, 2011.

Link Six(A)-Assignment: JPMorgan Chase Bank, National Association transferred all beneficial interest in the deed of trust to PennyMac Mortgage Investment Trust Holdings I, LLC pursuant to a “California Assignment of Deed of Trust” dated September 14, 2013, and recorded on November 15, 2013.

Link Seven-Trustee’s Sale: California Reconveyance Company, as trustee under the deed of trust, (1) sold the residence to PennyMac at a public auction conducted on November 20, 2013, and (2) issued a trustee’s deed of sale dated November 21, 2013 and recorded on November 22, 2013. PennyMac, the grantee under the deed upon sale, was described in the deed as the foreclosing beneficiary.

Link Six(B)-Purported Assignment: The day after the trustee’s sale, JPMorgan Chase Bank, National Association executed a “Corporate Assignment of Deed of Trust” dated November 21, 2013, purporting to transfer the deed of trust without recourse to PennyMac Holdings, LLC. The assignment was recorded November 22, 2013. This assignment was signed (1) after JPMorgan Chase Bank, National Association had signed and recorded the “California Assignment of Deed of Trust” described earlier as Link Six(A) and (2) after the trustee’s sale was conducted on November 20, 2013. Consequently, it is unclear whether any interests were transferred by this “corporate” assignment.

3. Links Three and Four Are Missing from the Chain

Postscript from Editor: This Court correctly revealed the fraudulent strategy of the banks, to wit: they created the illusion of multiple transfers giving the appearance of a solid chain of title BUT 2 of the transfers were fake, leaving the remainder of the chain void.

It is NOT enough to ALLEGE standing. They must PROVE it. Judges across the country are making mistakes with this simple concept. Standing to SUE is presumed if you allege (in words or by incorporation of exhibits) that you have it. Possession of the “original note” can be alleged but at trial the foreclosing party must PROVE (not argue) that (1) they have the original note and (2) they have the right to enforce it either because they own it or because they have been authorized by a person who owns it or a person who has the right to enforce it.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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In the end we are closing in on the unthinkable: that anyone who was entitled to be treated as creditor was severed from the transactions leaving all other parties floating and leaving legal analysts to wonder (the borrower, that is) or make fraudulent representations (the banks and servicers) that the putative creditors cannot refute.

In the end, with very few exceptions, none of the trusts own anything and none of the servicers or trustees have any authority over any loans. This is the direct result of asymmetry of knowledge. The investors, the borrowers and the closing agents and even the sales agents do not have sufficient information to know what is going on — forcing everyone to look to the “Bank” who appears to be the source of funding.

And the Banks get to explain it in whatever way benefits them the most. They are thus permitted to explain away any hint that they were stealing investor money on an unprecedented scale. That is what happened in the TARP bailout and that is what happens in court.

Here is a 4th DCA case in Florida that spells out the difference between alleging a case and proving it.

SEFFAR v. RESIDENTIAL CREDIT SOLUTIONS INC

No. 4D13–3514.

Decided: March 25, 2015

David H. Charlip of Charlip Law Group, LC, Aventura, for appellant. Raymond Hora of McCalla Raymer, LLC, Orlando, for appellee.

Appellant challenges a final judgment of foreclosure, claiming that the court erred in denying his motion for involuntary dismissal. He claimed that appellee did not prove standing to foreclose at the time suit was filed. We agree that the evidence is insufficient to show the plaintiff had standing and reverse. (e.s.)

Appellant executed a note and mortgage to ABN Amro Mortgage Group [EDITOR’S NOTE: SEARCH ABN AMRO ON THIS BLOG]. (“ABN”) in 2006. In 2009, appellant received a letter from CitiMortgage informing him that the servicing of his note and mortgage was being transferred from CitiMortgage to Residential Credit Solutions (“RCS”). RCS also sent a letter informing appellant of the transfer of the servicing of the loan. When he defaulted on the mortgage, RCS sent him a notice of default and subsequently filed suit, alleging that it had the right to enforce the note and mortgage. [EDITOR’S NOTE: HOMEOWNER DID NOT DEFAULT ON ANY OBLIGATION DUE RCS]

Attached to the complaint was the mortgage and note to ABN. The note was stamped “original” and did not contain any endorsements or allonges. Also attached was an assignment of the mortgage from the Federal Deposit Insurance Corporation (“FDIC”), as receiver for Franklin Bank, to Mortgage Electronic Registrations Systems (“MERS”), as nominee for RCS. [EDITOR’S NOTE: THE PRESENCE OF EITHER FRANKLIN OR MERS TELLS US THAT THE SUBJECT LOAN IS SUBJECT TO FALSE CLAIMS OF SECURITIZATION WHERE THE SOURCE OF FUNDS HAS BEEN CUT OFF FROM ITS INVESTMENT DESTROYING ITS STATUS AS A CREDITOR]

About nine months after filing the complaint, RCS filed what it claimed was the “original” note. Filed with this note was an undated, blank allonge, payable to the bearer, allegedly executed by a vice president of ABN. Nothing about the appearance of this allonge, as contained in the appellate record, shows that it was affixed to the note with which it was filed. (e.s.) [EDITOR’S NOTE: NO PROOF THE “ALLONGE” WAS ATTACHED? THEN THE ALLONGE IS A NULLITY. NO PRESUMPTION APPLIES].

Just two weeks before the foreclosure trial, RCS moved to substitute Bayview Loan Servicing as the plaintiff, alleging it had transferred servicing of the loan to Bayview. The documents attached to the motion do not mention that the ownership of the loan or mortgage was also transferred. The trial court allowed the substitution over appellant’s objection. (e.s.)

At trial, a litigation manager for Bayview testified. He was not a records custodian for RCS or for Bayview. He was not familiar with the computer systems that either of the prior servicers, CitiMortgage and RCS, used for compiling information on the loan or how it was inputted into the systems. He had no information as to whether the information on the loans was inputted into the prior servicers’ systems correctly. He could not testify to the truth or accuracy of RCS’s records, just that they were provided to Bayview. (e.s. [EDITOR’S NOTE: THESE ARE ELEMENTS OF PROOF THAT ARE ABSENT FROM THE TESTIMONY OF NEARLY EVERY ROBO-WITNESS]

He testified that Bayview was the servicer and holder of the note. He believed that Bayview had acquired the note through a purchase agreement with RCS, but he had not seen the agreement, nor did he have a copy of it. His belief that Bayview was the owner of the note under the purchase agreement was based on “a screen shot of our capital assets systems, which has information in regards to the status of the loan with us.” This screen shot was not produced at trial.

[Editor’s NOTE: Recent case decisions state that screen shots are hearsay and do not fall within any exceptions to the hearsay rule and are therefore barred from being admitted into evidence. The most important point to take away from this is that the witness nearly always knows absolutely nothing other than the script that he was required to memorize. Getting to that is actually fairly easy if you know how to do cross examination.]

As to the allonge with the blank endorsement from ABN, he did not know when it was executed or whether the signature on it was a “wet ink” signature or a stamp. He did not know whether the allonge was affixed to the note prior to it being filed in the court file. He did not know if the vice president who signed the allonge on ABN’s behalf was in the employ of ABN in November 2009, when Bayview’s records showed that servicing of the loan had been transferred from ABN to Franklin Bank. (e.s.)

The manager agreed that on January 29, 2010, when RCS mailed appellant a notice of intent to take legal action on the note and mortgage, RCS was not the owner and holder of the note by way of the September 30, 2009 assignment of mortgage, but testified, “[t]here may have been a purchase agreement or some other document.” He testified that, on that date, “I only know that RCS was servicing. I don’t know for a fact who was the holder of the note at the time.” While he did testify that RCS owned the note and mortgage on the date the complaint was filed, he then inconsistently stated that RCS had brought the suit as the servicer of the loan, not its owner. (e.s.)

Although appellant moved for involuntary dismissal on the ground that Bayview had not proved standing because it had not shown that it had the right to enforce the note and foreclose the mortgage, the trial court rejected this claim. It entered a final judgment of foreclosure in which it found that Bayview was due and owing the unpaid balance of the note. This appeal follows.

Appellant argues that Bayview failed to prove that it was the owner or holder of the note and that it had the right to foreclose. Based upon this confusing record, we agree that it presented no competent evidence that RCS was the holder of the note at the time it filed suit or that it was a nonholder in possession and entitled to enforce the note. Therefore, Bayview failed to prove standing.

Standing of the plaintiff to foreclose on a mortgage must be established at the time the plaintiff files suit. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). McLean set forth the requirements that a plaintiff may prove standing in a mortgage foreclosure:

Standing may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint ․ For example, standing may be established from a plaintiff’s status as the note holder, regardless of any recorded assignments․

If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement․ Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff ․

Even in the absence of a valid written assignment, the mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.

Id. at 173 (citations and quotation marks omitted).

Appellant notes several deficiencies in Bayview’s proof which result in a failure to show standing to foreclose the mortgage. First, while the note and mortgage were originally held by ABN, the only assignment of mortgage attached to the complaint and introduced at trial was one from FDIC as receiver for Franklin Bank to MERS as nominee for RCS. There is no proof of any transfer of the note or mortgage from ABN to Franklin Bank. Second, while Bayview contends that the undated allonge supplies the connection, as it shows a transfer payable to bearer, there was no proof that the allonge was attached to the note, and Bayview presented no proof of when it was executed. (e.s.) [EDITOR’S NOTE: THE ENDORSEMENT MEANS NOTHING IF IT WASN’T ON THE NOTE. IT WASN’T ON THE NOTE UNLESS THE ALLONGE WAS AFFIXED TO THE NOTE. THE ENDORSEMENT MEANS NOTHING WITHOUT FOUNDATION TESTIMONY PROVING THAT THE ENDORSER HAD THE AUTHORITY TO EXECUTE THE ENDORSEMENT] Finally, there was no competent evidence of what rights Bayview acquired from RCS.

We recently addressed how a plaintiff may show it is entitled to foreclose on a promissory note in Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA Jan. 21, 2015):

“Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be ․ a nonholder in possession of the note who has the rights of a holder.” Mazine v. M & I Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011).

A “person entitled to enforce” an instrument is: “(1) [t]he holder of the instrument; (2)[a] nonholder in possession of the instrument who has the rights of a holder; or (3)[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s[ection] 673.4181(4).” § 673.3011, Fla. Stat. (2013). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2013). Thus, to be a holder, the instrument must be payable to the person in possession or indorsed in blank. See § 671.201(5), Fla. Stat. (2013).

Although, nine months after filing the complaint, RCS filed what purported to be the original note with an allonge payable to bearer, it was undated and there is no proof it was affixed to the promissory note. “An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” See Booker v. Sarasota, Inc., 707 So.2d 886, 887 n. 1 (Fla. 1st DCA 1998) (quoting Black’s Law Dictionary 76 (6th ed.1990)); see also Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 496 n. 1 (Fla. 4th DCA 2011). The litigation manager did not know when the allonge was executed, or whether it was affixed to the note prior to filing. No evidence was presented that the allonge was executed and attached to the note prior to the filing of the initial complaint. Indeed, RCS did not allege in the complaint that it owned and held the mortgage. It merely alleged that it had the right to foreclose the note and mortgage. Therefore, the allonge provided no evidence that RCS was a “holder” at the time it filed the complaint.

Alternatively, Bayview argues that RCS was a nonholder in possession. However, Murray shows the fallacy of that claim. In Murray, we held that the lender, HSBC, had not proved standing where it had alleged that it was a nonholder in possession of the note and mortgage, because it did not prove that each prior transfer of the note conferred the right to enforce it: (e.s.)

HSBC was thus left to enforce the note under section 673.3011(2) as a nonholder in possession of the instrument with the rights of a holder. The issue then is whether HSBC is a nonholder in possession with the rights of a holder.

Anderson v. Burson, 424 Md. 232, 35 A.3d 452 (2011), is instructive. There, the court held that the plaintiff was a nonholder in possession and analyzed whether it had rights of enforcement pursuant to a Maryland statute that employs the same language as section 673.3011, Florida Statutes. Anderson, 35 A.3d at 462. “A transfer vests in the transferee only the rights enjoyed by the transferor, which may include the right to enforce [ment],” through the “shelter rule.” Id. at 461–62.

A nonholder in possession, however, cannot rely on possession of the instrument alone as a basis to enforce it․ The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee “must account for possession of the unendorsed instrument by proving the transaction through which the transferee acquired it.”(e.s.) [EDITOR’S NOTE: NO PRESUMPTIONS AND THEREFORE NO CASE FOR ENFORCEMENT IF NO TRANSACTION PROVEN. THE TRANSACTION IS NOT PRESUMED] Com. Law § 3–203 cmt. 2. If there are multiple prior transfers, the transferee must prove each prior transfer. Once the transferee establishes a successful transfer from a holder, he or she acquires the enforcement rights of that holder. See Com. Law § 3–203 cmt. 2. A transferee’s rights, however, can be no greater than his or her transferor’s because those rights are “purely derivative.” (e.s.)

Murray, 40 Fla. L. Weekly D239 (emphasis in original) (internal citations omitted). Because HSBC did not offer evidence of one of the prior transfers of the note, we held it did not prove that it was a nonholder in possession.

Similarly, in this case, Bayview did not prove that either RCS or itself was a nonholder in possession. It never connected FDIC as receiver of Franklin Bank, from which RCS acquired an assignment of mortgage, to ABN, the original note holder.

As alternative proof of its “ownership” of the note and mortgage, Bayview relied on a letter from RCS to the appellant, notifying him of the transfer of servicing rights to RCS, and a similar one from Bayview when it became the servicer of the loan. Neither letter addressed a right to enforce the note. None of the servicer agreements were placed in evidence to prove what rights either RCS or Bayview acquired under those agreements. (e.s.) [EDITOR’S NOTE: It is very rare that the servicer agreements are proffered by “Plaintiff” Trust (or other sham nominee) in evidence because those agreements, like Assignment and Assumption Agreements contain information that the securitization players don’t want the borrower, the court or government regulators or enforcers to see].Finally, as to the transfer between RCS and Bayview, the litigation manager testified that while he believed that Bayview purchased the note and mortgage from RCS, he had never seen a purchase agreement, and no document memorializing the purchase was entered into evidence. Therefore, because there is a gap in the transfer of the note and mortgage, Bayview did not prove that RCS, and subsequently Bayview, were nonholders in possession. See Murray, 40 Fla. L. Weekly D239.

Simply stated, the evidence presented was woefully inadequate to prove standing to foreclose. It was quite apparent from the record that Bayview’s litigation manager did not have the requisite knowledge, nor did he produce documentary evidence, to support the claim.

We thus reverse and direct judgment in favor of the appellant dismissing the foreclosure on the mortgage for failure of the appellee to prove its standing.

There is an old saying on Wall Street that “Bulls make money, Bears make money but Pigs never do.” The obvious circumstances of Chase claiming ownership to nonexistent loan portfolios contained within WAMU coupled with the admission in this letter to the FDIC, shows just how arrogant Chase felt when they informed the FDIC that they wanted to get paid by the FDIC for expunging documents and fabricating other instruments for “loans” that were not on the books and records of WAMU at the time of their purchase and sale agreement wherein Chase acquired the WAMU estate.

Hat tip to Bill Paatalo who reminded me of this letter that surfaced in the dispute over FDIC indemnification of Chase for the takeover of WAMU operations. Chase expressly admits to defects in the chain of title and erroneous mortgage documentation.

*

It has been central to the defense of foreclosures based upon alleged “loans” originated by Washington Mutual (WAMU) that Chase never acquired any loans. It is obvious from the the transaction where Chase agreed to pay around $2 Billion to the estate but received more than that in a tax refund due to the WAMU estate. So the consideration was zero.

*

Yet Chase has persistently asserted claims of ownership and direct or indirect authority to foreclose on loans that were not in the books and records of WAMU at the time of the FDIC sale to Chase.

Along with several others, I have stated the fact that Chase (1) acquired no loans (2) because they were not in the WAMU portfolio and that (3) a check of the WAMU books and records in the bankruptcy court will not show the loans that Chase says it acquired from WAMU. If WAMU didn’t own them then Chase could not have acquired them from WAMU.

*

In order to perpetuate this farce we have alleged that Chase was directly involved in the fabrication and forgery of documents to create the illusion of loans that didn’t exist on WAMU books and records and schedules in the receivership and schedules in bankruptcy.

*

Even a non-lawyer can see the problem for Chase. The letter in the link below clearly shows the lawyers asserting a claim for expenses in expunging records (i.e., destroying them) and fabricating other records which obviously leads to the issue of forging since the document itself was knowingly fabricated at the expense of Chase.

*

Somehow Chase came to the conclusion that having paid for the destruction of documents and having paid for fabricating documents, they were now entitled to call themselves owner of the “Loan portfolio” which according to the schedules never existed.

*

They admit to fabricating documents to create the illusion of a chain of title. Now they want payment from the FDIC to cover the expense of fabrication and forgery. Perhaps more importantly they admit “errors in mortgage documentation occurring prior to September 25,2008.”

Have you seen this letter? The collusion between JPMC and the FDIC could not be any more transparent.

Excerpts from letter in italics:

The additional matters giving rise to JPMC’s indemnity rights relate to costs incurred in connection with mortgages held by WMB prior to September 25,2008. These costs have resulted from aspects of-and circumstances related to- WMB mortgages that were not reflected on the books and records of WMB as of September 25, 2008, and include:

[HERE IS A DIRECT ADMISSION THAT THERE IS A SCHEDULE OF LOANS “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.” IF NO SCHEDULE EXISTS SHOWING WHAT WAS “ON THE BOOKS AND RECORDS,” THEN WE SHOULD NOW INQUIRE AS TO THE SCHEDULE SHOWING THOSE LOANS NOT REFLECTED ON THE BOOKS AND RECORDS.]

(a) Costs incurred by JPMC associated with individual assignments of WMB mortgages. Where JPMC has initiated foreclosures on properties associated with mortgages that were held by WMB prior to its Receivership, JPMC has performed individual assignments of the associated mortgages/deeds of trust and allonges to comply with a recent appellate-level court decision in Michigan so as avoid potential additional expense and/or liability. In so doing, JPMC has incurredadditional recording and legal fees, Limited Power of Attorney costs,as well as quantifiable costs associated with increased staffing to address these issues.

[THIS IS A DIRECT ADMISSION THAT ASSIGNMENTS AND ALLONGES ARE BEING EXECUTED BY JPMC (AS BENEFICIARIES AND MORTGAGEES) FOR WMB LOANS THAT WERE “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.”]

(c) Costs incurred by JPMC to expunge records associated with WMB mortgages as a result of errors in mortgage documentation occurring prior to September 25,2008, including erroneously recorded satisfactions of mortgages and associated legal fees and disbursements.

[“EXPUNGING RECORDS ASSOCIATED WITH WMB MORTGAGES AS A RESULT OF ERRORS IN MORTGAGE DOCUMENTATION?” THIS IS A DIRECT ADMISSION THE JPMC HAS DESTROYED RECORDS RELATED TO WMB MORTGAGE FILES.]

(d) Costs incurred by JPMC to correct various defects in the chains of title for WMB mortgages occurring prior to September 25, 2008, including recording and legal services fees.

[WHAT “CHAINS OF TITLE?” JPMC TAKES THE POSITION THAT THESE LOANS WERE NEVER SOLD BY WMB. THIS IS A DIRECT ADMISSION THAT JPMC IS ATTEMPTING TO CORRECT DEFECTS IN THE CHAINS OF TITLE FOR WMB LOANS THAT WERE NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB. THESE “CORRECTIONS” UNIVERSALLY INVOLVE ASSIGNMENTS OF BENEFICIAL INTERESTS FROM THE FDIC, AND/OR BY VIRTUE OF THE PAA.]

At the time of WMB’ s closure, the above liabilities were not reflected on its books and records.
—

If only all courts would entertain the possibility that everything presented to them should be the subject of intense scrutiny, 90%+ of all foreclosures would have been eliminated. Imagine what the country would look like today if the mortgages and fraudulent foreclosures failed.

The Banks say that if the mortgages failed they all would go bust and that there is nothing to backstop the financial system. The rest of us say that illegal mortgage lending and foreclosures was too high a price to pay for a dubious theory of national security.

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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I received the email quoted below from David Belanger who, like many others has proven beyond any reasonable doubt that persistence pays off. (BOLD IS EMPHASIS SUPPLIED BY EDITOR)

Besides the obvious the big takeaway for me was what I have been advocating since 2007 — if any company in in the alleged chain of “creditors” has gone out of business, there probably is a bankruptcy involved or an FDIC receivership. Those records are available for inspection. And what those records will show is that the the bankrupt or insolvent entity did not own the debt that arose when you signed documents for the benefit of parties other than the source of funding. It will also show that the bankrupt or insolvent entity did not own the note or mortgage either.

This is instructional for virtually all parties “involved” in a foreclosure but particularly clear in the cases of OneWest, whose entire business plan depended upon fraudulent foreclosures, and Chase Bank who bet heavily on getting away with it and they have, so far. BUT looking at the bankruptcy and receivership filings of IndyMac and WAMU respectively the nature of the fraud was obvious and born out of pure arrogance and apparently a correct perception of invincibility.

All such bankruptcy proceedings and receivership require schedules of assets right down to the last nickle in bankruptcy. Belanger simply looked at the schedule, knowing he never took the loan, and found without surprise that the bankrupt entity never claimed ownership of the debt, note or mortgage.

The big message here though is not just for those who are being pursued in collection for loans they never asked for nor received. The message here is to look at those schedules to see if your debt, note or mortgage is listed. Lying on those forms is a federal felony punishable by jail. Those forms are the closest you are ever going to get to the truth. Odds are your loan is nowhere to be found — even if you did get a loan.

And the second takeaway is the nonexistence of the “trust.” In most cases it never existed. Your “REMIC Trust” was almost certainly formed under the laws of the State of New York or Delaware that permit common law trusts (i.e., trusts that don’t need to be registered with the state in order to exist). BUT uniform trust laws adopted in virtually all states require for the trust to be considered a “person” it needs to have these elements — (1) trustor (2) trustee (3) trust instrument (PSA) and (4) a “thing” (res in Latin) that is committed to the trust by someone who owns the thing. It is the last element that is wholly absent from nearly all REMIC “Trusts.”

And now, David Belanger’s email:

JUST WANTED TO TELL YOU ALL SOMETHING, THAT I JUST GOT DONE , FROM MERSCORP! ON OUR PROPERTY THERE WAS A 2d MORTGAGE ON IT, IT WAS A LINE OF CREDIT THAT WE DID NOT DO, AND WE DID REPORT IT TO THE RIGHT AUTHORITY’S, BACK IN 2006/2007. NOW THE COMPANY WAS GMAC MORTGAGE CORP.

OVER THE YRS, FROM 2006 TILL NOW, IT REMAINED ON PROPERTY, UNTIL JUST LAST WEEK, WHEN I DEMANDED THAT MERS DISCHARGE IT. AND AFTER THEY FOUND OUT IT WAS NEVER ASSIGNED OUT OF MERS, THEY HAD TO DISCHARGE IT. BECAUSE GMAC MORTGAGE IS DEAD. NOW THIS GO TO WHAT WE ALL HAVE SAID HERE.

ANY ASSIGNMENT THAT HAS NOT BEEN DONE, OR RECORDED AT REGISTRY OF DEEDS, OUT OF MERS, AND THE MORTGAGE COMPANY IS A DEAD MORTGAGE COMPANY. THEN MERS WILL DISCHARGE IT . I HAVE A COPY OF THE DISCHARGE IN HAND.

AM STILL FIGHTING, BECAUSE OF THIS NEWS, I HAVE ASK MY ATTORNEY TO NO AVAIL TO DO A QWR ON THE COMPANY THAT RECORDED AN ASSIGNMENT IN 2012, EVEN THOUGH GMAC MORTGAGE CORP WAS IN BK AND AFTER GOING THROUGH ALL BK RECORDS OF EACH ENTITY, THAT HAD TO FILE ALL ASSET OF THERE COMPANY, AND FOUND THAT NO ONE IN GMAC HAD THE MORTGAGE AND NOTE, 3 MONTHS PRIOR TO THE ASSIGNMENT BEING PUT ON MY RECORD.https://www.kccllc.net/rescap/document/1212020120703000000000033

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW …http://www.kccllc.net
Southern District of New York, New York In re: GMAC Mortgage, LLC UNITED STATES BANKRUPTCY COURT Case No. 12-12032 (MG) B6 Summary (Official Form 6 – Summary) (12/07)

THIS IS AGAIN THE REASON, THIS FRAUD TRUST DOES NOT EXIST, AND I DO HAVE ALL SECRETARY OF STATES, INCLUDING ALL STATING THAT THIS FRAUD TRUST IN FACT HAS NEVER
BEEN REGISTERED IN ANY STATE. LET ALONG THE STATE OF DELAWARE, THE STATE THEY SAY IT IS REGISTERED IN. THE SECRETARY OF STATE SAID NO. AND HAS NEVER BEEN A LEGAL OPERATING TRUST, EVER. SIGNED AND NOTARIZED BY THE SECRETARY. THE FRAUD TRUST NAME IS AS FOLLOWS.
GMACM MORTGAGE LOAN TRUST 2006-J1,

There two ways of looking at this prospective appointment by President-Elect Trump.

One is that this appointment signals the intent to further “expedite” foreclosures instead of digging deeper into the real facts and fraud by Wall Street banks. Such an effort would eliminate the possibility of the US Treasury clawing back huge sums of money for nonexistent bank losses stemming from alleged defaulted loans.

Some may remember that the infamous TARP bailout was first described and approved as covering losses from the loans to residential homeowners. Then it evolved. The description and approval was to cover losses from failed mortgage bonds. But neither defaults nor bond failures were actual losses of the banks.

They had sold the loans and bore no risk. And they were selling bonds not buying them. Then it evolved again. The description and approval was to cover lost profits on hedge products, insurance and credit default swaps, at which point it became a relief program for “troubled assets” which was code for giving the banks additional profit after already having gouged the US economy.

OneWest benefited from a cozy government relationship, over the objections of Sheila Bair, head of the FDIC. Like Chase, Wells Fargo, Citi, BOA and others OneWest acquired servicing rights but also was allowed to take the position that it owned loans acquired from its takeover of IndyMac, which had been addicted to fees generated from apparent “originations.”

The foreclosures that ensued resulted in a windfall profit to OneWest. Mnuchin was the organizer of OneWest, collecting up several billionaires around the country to create OneWest and do the deal with the FDIC in which it created the illusion of buying loans. But OneWest then got out of the business.

So I am reminded of history when FDR appointed one of the worst insiders to Wall Street schemes as first Chairman of the SEC. That was none other than Joseph Kennedy, the father of JFK. Wall Street cheered, being under the mistaken impression that they were free to create more schemes and defraud more people out of what was left in household and individual wealth.

Instead Joe Kennedy took the job seriously and was instrumental in creating numerous reforms and enforcement proceedings that shook Wall Street to its core — giving them pause before initiating some other fraudulent scheme. Republicans have been chipping away at that legacy for decades.

So the other possibility here is that the appointment of Mnuchin might be a replay of the appointment of Joe Kennedy. Mnuchin is the one guy who understands where the bodies are buried and understands how the latest meltdown was triggered by Wall Street fraud. He might be the right one to tackle this unprecedented problem without bringing down the entire financial system. If so, the TBTF banks might be redesignated as TBTE (Too Big To Exist).

If that dream comes true, then homeowners might get the relief necessary to recalibrate the US economy that is 70% dependent upon consumer spending. And it might just be acknowledged by government that what happened was a double blind fraud: institutional investors and individual homeowners were both victims that were entitled to reparations. And perhaps there will be created a mechanism for putting those two groups of victims together to salvage the “asset values” on their books.